EEOC Addresses When COVID-19 May Be a Disability Requiring Accommodation

An applicant or employee whose COVID-19 results in mild symptoms that resolve in a few weeks—with no other consequences—will not have a disability that could make someone eligible to receive a reasonable accommodation, according to the Equal Employment Opportunity Commission (EEOC).

That guidance from the federal agency comes in its updated COVID-19 technical assistance, with a new section clarifying under what circumstances COVID-19 may be considered a disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act.

EEOC’s new questions and answers focus broadly on COVID-19 and the definition of disability under Title I of the ADA and Section 501 of the Rehabilitation Act, which both address employment discrimination. The updates also provide examples illustrating how an individual diagnosed with COVID-19 or a post-COVID condition could be considered to have a disability under the laws.

The EEOC advises that applicants or employees with disabilities are not automatically entitled to reasonable accommodations under the ADA. “They are entitled to a reasonable accommodation when their disability requires it, and the accommodation is not an undue hardship for the employer. But employers can choose to do more than the ADA requires,” the EEOC states.

In addition to those clarifications, the EEOC update notes:

• In some cases, an applicant’s or employee’s COVID-19 may cause impairments that are themselves disabilities under the ADA, regardless of whether the initial case of COVID-19 itself constituted an actual disability.
• An employer risks violating the ADA if it relies on myths, fears, or stereotypes about a condition and prevents an employee’s return to work once the employee is no longer infectious and, therefore, medically able to return without posing a direct threat to others.

“This update to our COVID-19 information provides an additional resource for employees and employers facing the varied manifestations of COVID-19,” commented EEOC Chair Charlotte A. Burrows. “Like effects from other diseases, effects from COVID-19 can lead to a disability protected under the laws the EEOC enforces. Workers with disabilities stemming from COVID-19 are protected from employment discrimination and may be eligible for reasonable accommodations.”

Employment Practices Insurance in Age of COVID, Vaccines, Shutdowns and Hard Market

The prospect of many people suffering long-term COVID-19 symptoms has raised concerns.

The Department of Health and Human Services has issued guidance that people struggling with long-haul COVID are protected by the ADA and employers may have to provide reasonable accommodations to allow them to continue working.

Insurers are watching. About 10% of people who contracted COVID-19 continue to suffer persistent symptoms months later, according to a report released by the National Council on Compensation Insurance. The report, written by Paradigm Chief Medical Officer Dr. Michael Choo, says COVID long-haulers are anxious and irritable. They can’t sleep, break out in rashes, suffer blurry vision and chest pain and are constantly thirsty. Researchers have identified 21 symptoms that have persisted as long as nine months after the initial infection.

Choo’s report for NCCI, citing published studies, says that 81% of people who contracted COVID-19 suffered only mild symptoms or were asymptomatic, with only 5% suffering severe symptoms. Of the people who had severe symptoms, 76% had at least one symptom six months later, the most common being fatigue, muscle weakness, and sleep difficulties. However, Choo reported that another study found that 10% of all people who contracted COVID-19 suffered symptoms more than three weeks later.

Report Sounds Alarm Over Workers With Long-Term COVID-19 Symptoms

The National Institutes ascribed a new term for the syndrome — post-acute sequelae of severe acute respiratory syndrome-coronavirus 2, or PASC. Researchers have identified several “symptom groups” that impact the cardiovascular system, pulmonary, endocrine and auto immune systems, as well as mood disorders and sleep disorders.

The report says PASC symptoms usually diminish in three to six months, but sometimes last as long as nine months.

“The frustrating reality is that the constellation of symptoms experienced by those with PASC for extended periods of time can significantly delay their ability to return to work and/or their prior level of function and impair quality of life,” the report says.

Dr. Claire Pomeroy, an infectious disease expert and president of the Lasker Foundation, has also warned about long-term COVID, writing in Scientific American that the nation should be prepared for a “tsunami of disability” caused by long-COVID.

EEOC Lawsuits

In September the EEOC filed its first lawsuit about a request for an ADA accommodation related to COVID-19. The agency alleged that ISS Facility Services, Inc., a Georgia workplace experience and facility management company, unlawfully denied its employee’s reasonable request for an accommodation for her disability and then fired her for requesting it,

According to the EEOC’s suit, Ronisha Moncrief worked for ISS as a health and safety manager at ISS, where from March 2020 through June 2020, ISS required all of its employees to work remotely four days per week due to the COVID-19 pandemic. In June 2020, when the facility re-opened, Moncrief requested an accommodation to work remotely two days per week and take frequent breaks while working onsite due to her pulmonary condition that causes her to have difficulty breathing and placed her at a greater risk of contracting COVID-19. Although the company allowed other employees in Moncrief’s position to work from home, it denied Moncrief’s request and, shortly thereafter, fired her.

The EEOC has also taken action in two cases where COVID employees had pre-existing disabilities that could be exacerbated by exposure to COVID-19. The EEOC filed two lawsuits in Texas courts, alleging that a pharmacy in Fabens and a coffeehouse in Fort Worth both discriminated against employees with disabilities that rendered them vulnerable to serious illness if they contracted COVID-19.

The two employers took different approaches to the virus, but both ran afoul of the ADA, according to the EEOC.

The EEOC’s suit against the pharmacy alleges it discriminated against a pharmacy technician with asthma who asked to wear a facemask at work as an accommodation of his disability immediately following the COVID-19 outbreak to help protect him from the virus. The employee was harassed because he requested this accommodation and was sent home twice when he asked to wear a mask, and then taunted and humiliated for questioning management’s policy prohibiting masks, leading him to quit, according to the suit.

EEOC filed suit in Fort Worth against 151 Coffee, alleging that the company violated the ADA by denying reasonable accommodation to two baristas with disabilities and terminating their employment. According to the EEOC’s complaint, the employees were not allowed to return to work until a vaccine for COVID-19 was developed, even though they were ready and willing to work.

Topics COVID-19